There are reasonable grounds to believe that the legal regime for the responsibility of insiders, emphasising the objective elements of the factual circumstances, elaborated on the basis of the MAD Directive, will also be applied on the grounds of the Auctioning Regulation and the future REMIT Regulation.
The core concepts of the legal scheme laid down in the provisions on insider dealing and market manipulation (market abuse) as regulated in the Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (OJ 2003 L 96, p. 16 as amended – further: “the MAD Directive”) principally designed for the financial markets are currently spreading into new areas. The newest examples are primary markets in emission allowances (see: Commission Regulation No 1031/2010 of 12 November 2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowances trading within the Community OJ L 302, 18.11.2010, p. 1 - referred to in the rest of the Article as the “Auctioning Regulation”) and physical commodity markets in electricity and gas, and contracts for the transportation thereof (see: „Proposal for a Regulation of the European Parliament and of the Council on energy market integrity and transparency {SEC(2010) 1510} {SEC(2010) 1511}”, referred to in the rest of the Article as the “REMIT Regulation”)”.
The legal framework for market abuse laid down in the MAD Directive has been slightly adapted to the specificities of the new, different products and markets but the core legislative concepts and principles remained unchanged. In this context it could be reasonable to bear in mind the judicatory line elaborated on the ground of interpretation of Article 2 of the MAD Directive, which, it seems, could be also applicable, by analogy, to the relevant provisions of the Auctioning Regulation (in particular, Chapter X articles 36-43 thereof) and the REMIT Regulation.
Of utmost importance is the clarification given by the Court of Justice of the European Union (Third Chamber) in the judgment of 23 December 2009 Spector Photo Group NV and Chris Van Raemdonck v Commissie voor het Bank-, Financie - en Assurantiewezen (CBFA) in Case C‑45/08 (reference for a preliminary ruling under Article 234 EC).
Reference for a preliminary ruling concerned the interpretation of, among others, Article 2 of MAD Directive.
Point 1 of the operative part of the said judgment reads:
“On a proper interpretation of Article 2(1) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse), the fact that a person as referred to in the second subparagraph of that provision, in possession of inside information, acquires or disposes of, or tries to acquire or dispose of, for his own account or for the account of a third party, either directly or indirectly, the financial instruments to which that information relates implies that that person has ‘used that information’ within the meaning of that provision, but without prejudice to the rights of the defence and, in particular, to the right to be able to rebut that presumption. The question whether that person has infringed the prohibition on insider dealing must be analysed in the light of the purpose of that directive, which is to protect the integrity of the financial markets and to enhance investor confidence, which is based, in particular, on the assurance that investors will be placed on an equal footing and protected from the misuse of inside information”.
The operative part of the judgment may be voiced, to a certain extent, incomprehensibly to persons not having professional legal education but the implications of the interpretation are very strong. The range of its applicability is also very extensive, because this was done with a view to achieving uniform harmonisation of the law of the Member States.
So, what does this mean practically?